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Lindon v. Kakavand

United States District Court, Sixth Circuit

September 27, 2013

TONYA LINDON, as Parent of a Minor and Next Friend MJL, Plaintiff,
v.
BAHRAM KAKAVAND, M.D., et al., Defendants.

MEMORANDUM OPINION AND ORDER

DANNY C. REEVES, District Judge.

This matter is pending for consideration of Plaintiff Tonya Lindon's[1] motion to remand this matter to the Fayette Circuit Court. [Record No. 4] For the reasons explained below, the motion will be denied.

I.

This medical negligence/malpractice suit arises from a medical procedure performed by Defendant Bahram Kakavand, M.D, on the minor child MJL. On December 13, 2012, the plaintiff commenced this action in Fayette Circuit Court, naming Dr. Kakavand and Kentucky Medical Services Foundation, Inc., ("KMSF") as defendants. The plaintiff is a citizen and resident of the Commonwealth of Kentucky. Dr. Kakavand is a citizen of Iran, but is a lawful, permanent resident of the United States, domiciled in Virginia. [Record No. 3, p. 2 ¶¶ 6, 7] KMSF is a Kentucky corporation, incorporated and formed pursuant to Kentucky law. [Record No. 3-1, p. 8 ¶ 3]

The plaintiff alleges that, on or about October 14, 2011, MJL underwent an electrophysiology study and ablation performed by Dr. Kakavand at UK Healthcare Kentucky Children's Hospital. [ Id. ¶ 4] During this procedure, MJL developed a complete heart block that necessitated an emergency implantation of a dual-chamber pacemaker. [ Id. ¶ 5] The plaintiff contends that Dr. Kakavand "was the agent, servent and employee of [KMSF]" and that KMSF was negligent in its "medical service to [the plaintiff] through its agents, servants and employees or ostensible agents, servants and employees, including but not limited to Bahram Kakavand, M.D." [ Id. ¶¶ 2-3] However, she has provided no factual support for this conclusory allegation. As a result of the defendants' claimed negligence, MJL allegedly sustained injuries which have required additional medical treatment. The plaintiff seeks an award of damages for past and future physical and mental pain and suffering, past and future medical expenses, and permanent impairment of M.J.L.'s power to earn money. The plaintiff also seeks to recover punitive damages from the defendants. [ Id., pp. 8-9 ¶¶ 9-10]

On January 28, 2013, Dr. Kakavand removed this matter to this Court pursuant to 28 U.S.C. §§ 1441 and 1446. [Record No. 3] In the Notice of Removal, Dr. Kakavand asserts that KMSF's citizenship should be disregarded for purposes of determining diversity jurisdiction under 28 U.S.C. § 1332(a) because KMSF was fraudulently joined as a party. [ Id., pp. 3-4 ¶¶ 12] The plaintiff filed a timely motion to remand, arguing that: (i) the notice of removal was untimely; (ii) KMSF did not consent or join in the notice of removal; and (iii) KMSF was properly joined. As a result, the plaintiff argues that this Court lacks jurisdiction under 28 U.S.C. § 1332. [Record No. 4] In her reply, the plaintiff raises a new argument that the defendant's evidence regarding the amount in controversy should be disregarded and that this matter should be remanded for failure to sufficiently demonstrate that her claims exceed $75, 000.00, exclusive of interest and costs. [Record No. 6, pp. 1-5]

II.

A case filed in state court is removable only if it could have been brought in federal court originally. See 28 U.S.C. § 1441(a) ("[A]ny civil action brought in a State court of which the district courts of the United States have original jurisdiction[] may be removed... to the district court of the United States for the district and division embracing the place where such action is pending."); Lincoln Prop. Co. v. Roche, 546 U.S. 81, 83 (2005) ("[Section] 1441... authorizes removal of civil actions from state court to federal court when the action initiated in state court is one that could have been brought, originally, in federal district court."). Pursuant to 28 U.S.C. § 1332, federal district courts have original jurisdiction over civil actions between citizens of different states where the amount in controversy exceeds $75, 000.00, exclusive of interest and costs. 28 U.S.C. § 1332(a). The statute "has been interpreted to demand complete diversity, that is, that no party share citizenship with any opposing party." Caudill v. N. Am. Media Corp., 200 F.3d 914, 916 (6th Cir. 2000). The removing party bears the burden of establishing diversity jurisdiction. Coyne ex rel. Ohio v. Am. Tobacco Co., 183 F.3d 488, 493 (6th Cir. 1999).

III.

A. Timeliness of Removal

Defendant Kakavand asserts that removal was effective when the notice of removal and notice filing were filed on January 28, 2013. He also argues that removal was timely because it did not become apparent until he received billing records on January 16, 2013, that the amount in controversy exceeded $75, 000.00. [Record No. 5, p. 3] Title 28 of the United States Code, Section 1446(b), governs the timeliness of removal. This statutory section "provides a two-step test for determining whether a defendant timely removed a case." Chapman v. Powermatic, Inc., 969 F.2d 160, 161 (5th Cir. 1992); see also 28 U.S.C. § 1446(b)(1), (3). Under a plain reading of the statute, "if the case stated by the initial pleading is removable, then notice of removal must be filed within thirty days from the receipt of the initial pleading by the defendant." Chapman, 969 F.2d at 161. However, if the case stated by the initial pleading is not removable, the notice of removal may be filed within thirty days of the receipt of any amended pleading or other paper from which the defendant can first ascertain that the case is removable. See 28 U.S.C. § 1446(b)(3).

The time requirements for the removal of civil cases "is a strictly applied rule of procedure and untimeliness is a ground for remand so long as the timeliness defect has not been waived." Seaton v. Jabe, 992 F.2d 79, 81 (6th Cir. 1993) (quotation marks and citations omitted). "[I]n the interest of comity and federalism, federal jurisdiction should be exercised only when it is clearly established, and any ambiguity regarding the scope of § 1446(b) should be resolved in favor of remand to the state courts." Brierly v. Alusuisse Flexible Packaging, Inc., 184 F.3d 527, 534 (6th Cir. 1999). A defendant's failure to comply with these temporal requirements acts as barrier to federal jurisdiction.

Here, Dr. Kakavand was served with the summons and a copy of the Complaint on December 27, 2012.[2] On January 28, 2013, he filed the initial Notice of Removal. [Record No. 3, pp. 1-2] However, the Court ordered that the Notice of Removal be stricken because it contained information that violated the Court's redaction policy regarding the names of minor children. Dr. Kakavand was given ten days from January 29, 2013, to cure these deficiencies. [Record No. 2] The same day, on January 29, 2013, he re-filed a notice of removal that complied with the Court's redaction policy. [Record No. 3]

As an initial matter, the parties mistakenly state that January 28, 2013 was the thirtieth day after December 27, 2012.[3] In fact, January 28, 2013, was thirty-two days after the date Dr. Kakavand was properly served. Regardless, this is of no consequence because the thirty-day period for filing the notice of removal did not commence until January 16, 2013, ...


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